Education article rewrite could prove contentious

By Dana BeyerleTimes Montgomery Bureau

Published: Saturday, November 17, 2012 at 10:53 p.m.

Last Modified: Saturday, November 17, 2012 at 10:55 p.m.

MONTGOMERY — The Legislature will begin working next year on a rewrite of the constitution’s education article in a process that almost certainly will involve all three branches of government and powerful lobbying organizations.

Republicans who govern the Legislature are embarked on an article-by-article rewrite of the 1901 Constitution that has been amended more than 800 times.

The latest attempt to rewrite a small part ended in failure Nov. 6 when voters refused to remove inoperative poll tax language inserted in the constitution during Jim Crow days.

The amendment was opposed by the powerful Alabama Education Association because of fears that a new amendment would not guarantee a right to an education and preserve any future court challenge to the current system of financing education.

Gov. Robert Bentley supported the attempt to remove racist language called Amendment 4 and said he’ll support future attempts.

The 2013 work on the education article could be presented to the full Legislature to consider in the 2014 session.

Before it gets there, the Supreme Court may have to decide what language can be amended, whether it’s the original Section 256 from the 1901 Constitution that guarantees a right to an education or Amendment 111 that removed that right to an education in 1956.

Amendment 111 was the reaction to the U.S. Supreme Court’s ruling that segregated schools, which Alabama had, were illegal. The amendment was passed in an atmosphere of defiance and possibly with the intent to do away with public schools and shift education dollars to private schools.

It’s the language in Amendment 111 that the Senate author of Amendment 4 ultimately used for the amendment that voters rejected Nov. 6.

Theories abound about why Sen. Arthur Orr, R-Decatur, in his attempt to modify the constitution didn’t use Section 256 language that guaranteed a right to an education, but used Amendment 111 language that voters had approved in 1956.

Some believe the Alabama Farmers Federation, the defender of low taxes, got to Orr. ALFA spokesman Brian Hardin said yes, the organization talked with Orr.

“That (Section 256) language had already been amended out and we did not focus on that language,” Hardin said. “We said let’s focus on something we could agree on.”

The original Amendment 4 that Orr introduced in 2011 contained the Section 256 language that guaranteed the right to an education. Orr said he got the language from a bill by black lawmaker Rep. James Buskey, D-Mobile, in his previous attempt to amend the constitution.

Craig Baab, an attorney with the Alabama Appleseed organization, got involved. He said he told Orr he couldn’t amend inoperative constitutional language and if the amendment passed it probably would be challenged.

“We saw the bill as introduced and went through it and met with him,” Baab said in a recent interview. “I said if we tried to go back to what Buskey tried to do before, I figured it would fail again, and that would be awful for (education) support.”

The Supreme Court dismissed the lawsuit in 2002. “The Constitutions of 1875 and 1901, however, placed the power over education in the Legislature (or General Assembly),” the court ruled.

Baab said the Amendment 111 language “is still in there.”

He added, “I say look at any copy of the Constitution. I wrote the letter saying this is, of course, the first step and it will lead to an effort to reinstate the right to an education.”

Orr explained why he changed his original bill.

“A lawyer came to visit me and said we support the bill, but you’re going to create much more problems constitutionally than you’re going to solve,” Orr said. “You’re attempting to amend something that’s already gone, old 256, but the current code is 111.”

The substitution Orr passed incensed black lawmakers once the AEA entered the picture. “Nobody ever gave an explanation and that’s why we backed off,” said Sen. Bobby Singleton, D-Greensboro.

Baab said he was surprised by the AEA’s opposition “because nothing (had been) said or done since 2011, when Sen. Orr’s bill was approved.”

The Alabama Law Institute, the Legislative Reference Service and Samford University law professor Howard Walthall agreed with Orr that his amendment wouldn’t affect education.”Everyone came back with the conclusion that you have to go what’s in the code today and that is 111,” Orr said.

A retired University of Alabama law professor, Martha Morgan, told the New York Times a vote for the amendment would affirm there is no constitutional right to a public education. That could jeopardize future legal challenges to school financing, she said.

API General Council Cameron Smith wrote, “The AEA wanted to preserve as much of its ability to use racial animus as possible to shape education funding and tax policy through the courts, especially since it no longer has total control over the Alabama Legislature.”

Orr said opponents had all of the 2012 legislative session to voice objections.

“My goal was to remove the racist language and it’s extremely unfortunate that it was attacked like it was,” he said. “The law, the assertions that were made the last three weeks, were wrong, were misrepresentations, according to legal scholars.”

Before the Legislature’s article revision committee can look at whether Amendment 111 superseded Article 256 or whether Montgomery County Circuit Judge Gene Reese’s 1993 ruling still stands, someone is going to have to determine the operative language.

And that is probably going to be the Supreme Court.

Bentley or the Legislature can ask the Supreme Court for an opinion. “I’ll study it carefully and make a decision that’s best for the state,” Bentley said.

The Supreme Court in January will be headed by former Chief Justice Roy Moore, who will be sworn just prior to the 2013 legislative session.

When he was chief justice in 2002, Moore concurred in part and dissented in part on the equity funding lawsuit: “I not only agree that this case should be dismissed, but I would go further and say that it should be vacated; the trial court never had subject-matter jurisdiction over the original complaints. Therefore, the circuit court’s every act — from the first day —was illegal and is void,” he wrote.

The AEA’s Mabry said there ultimately may have to be some negotiating.

“I think that the interested parties need to sit down and discuss concerns and have meeting of the minds so we can best address the old racist language,” Mabry said. “It needs to be taken out, everybody agrees to that. I guess the question is how do you get to that point.”

<p>MONTGOMERY — The Legislature will begin working next year on a rewrite of the constitution's education article in a process that almost certainly will involve all three branches of government and powerful lobbying organizations.</p><p>Republicans who govern the Legislature are embarked on an article-by-article rewrite of the 1901 Constitution that has been amended more than 800 times.</p><p>The latest attempt to rewrite a small part ended in failure Nov. 6 when voters refused to remove inoperative poll tax language inserted in the constitution during Jim Crow days.</p><p>The amendment was opposed by the powerful Alabama Education Association because of fears that a new amendment would not guarantee a right to an education and preserve any future court challenge to the current system of financing education.</p><p>Gov. Robert Bentley supported the attempt to remove racist language called Amendment 4 and said he'll support future attempts.</p><p>The 2013 work on the education article could be presented to the full Legislature to consider in the 2014 session.</p><p>Before it gets there, the Supreme Court may have to decide what language can be amended, whether it's the original Section 256 from the 1901 Constitution that guarantees a right to an education or Amendment 111 that removed that right to an education in 1956.</p><p>Amendment 111 was the reaction to the U.S. Supreme Court's ruling that segregated schools, which Alabama had, were illegal. The amendment was passed in an atmosphere of defiance and possibly with the intent to do away with public schools and shift education dollars to private schools.</p><p>It's the language in Amendment 111 that the Senate author of Amendment 4 ultimately used for the amendment that voters rejected Nov. 6.</p><p>Theories abound about why Sen. Arthur Orr, R-Decatur, in his attempt to modify the constitution didn't use Section 256 language that guaranteed a right to an education, but used Amendment 111 language that voters had approved in 1956.</p><p>Some believe the Alabama Farmers Federation, the defender of low taxes, got to Orr. ALFA spokesman Brian Hardin said yes, the organization talked with Orr.</p><p>“That (Section 256) language had already been amended out and we did not focus on that language,” Hardin said. “We said let's focus on something we could agree on.”</p><p>The original Amendment 4 that Orr introduced in 2011 contained the Section 256 language that guaranteed the right to an education. Orr said he got the language from a bill by black lawmaker Rep. James Buskey, D-Mobile, in his previous attempt to amend the constitution.</p><p>Craig Baab, an attorney with the Alabama Appleseed organization, got involved. He said he told Orr he couldn't amend inoperative constitutional language and if the amendment passed it probably would be challenged.</p><p>“We saw the bill as introduced and went through it and met with him,” Baab said in a recent interview. “I said if we tried to go back to what Buskey tried to do before, I figured it would fail again, and that would be awful for (education) support.”</p><p>The AEA believes Amendment 111 isn't operative because a Montgomery Circuit judge in the equity funding lawsuit in 1993 reinstated Section 256 language.</p><p>The Supreme Court dismissed the lawsuit in 2002. “The Constitutions of 1875 and 1901, however, placed the power over education in the Legislature (or General Assembly),” the court ruled.</p><p>Baab said the Amendment 111 language “is still in there.”</p><p>He added, “I say look at any copy of the Constitution. I wrote the letter saying this is, of course, the first step and it will lead to an effort to reinstate the right to an education.”</p><p>Orr explained why he changed his original bill.</p><p>“A lawyer came to visit me and said we support the bill, but you're going to create much more problems constitutionally than you're going to solve,” Orr said. “You're attempting to amend something that's already gone, old 256, but the current code is 111.”</p><p>The substitution Orr passed incensed black lawmakers once the AEA entered the picture. “Nobody ever gave an explanation and that's why we backed off,” said Sen. Bobby Singleton, D-Greensboro.</p><p>Baab said he was surprised by the AEA's opposition “because nothing (had been) said or done since 2011, when Sen. Orr's bill was approved.”</p><p>The Alabama Law Institute, the Legislative Reference Service and Samford University law professor Howard Walthall agreed with Orr that his amendment wouldn't affect education.”Everyone came back with the conclusion that you have to go what's in the code today and that is 111,” Orr said.</p><p>AEA lawyers prior to the Amendment 4 vote disagreed, saying Article 256 language is still the law.</p><p>A retired University of Alabama law professor, Martha Morgan, told the New York Times a vote for the amendment would affirm there is no constitutional right to a public education. That could jeopardize future legal challenges to school financing, she said.</p><p>The Alabama Policy Institute published an editorial titled “The racist results of blind loyalty.”</p><p>API General Council Cameron Smith wrote, “The AEA wanted to preserve as much of its ability to use racial animus as possible to shape education funding and tax policy through the courts, especially since it no longer has total control over the Alabama Legislature.”</p><p>AEA Executive Secretary Henry Mabry stuck to his guns. “Our lawyers think we're right, how the bill (was) constructed,” he said Thursday.</p><p>Orr said opponents had all of the 2012 legislative session to voice objections.</p><p>“My goal was to remove the racist language and it's extremely unfortunate that it was attacked like it was,” he said. “The law, the assertions that were made the last three weeks, were wrong, were misrepresentations, according to legal scholars.”</p><p>Before the Legislature's article revision committee can look at whether Amendment 111 superseded Article 256 or whether Montgomery County Circuit Judge Gene Reese's 1993 ruling still stands, someone is going to have to determine the operative language.</p><p>And that is probably going to be the Supreme Court.</p><p>Bentley or the Legislature can ask the Supreme Court for an opinion. “I'll study it carefully and make a decision that's best for the state,” Bentley said.</p><p>The Supreme Court in January will be headed by former Chief Justice Roy Moore, who will be sworn just prior to the 2013 legislative session.</p><p>When he was chief justice in 2002, Moore concurred in part and dissented in part on the equity funding lawsuit: “I not only agree that this case should be dismissed, but I would go further and say that it should be vacated; the trial court never had subject-matter jurisdiction over the original complaints. Therefore, the circuit court's every act — from the first day —was illegal and is void,” he wrote.</p><p>The AEA's Mabry said there ultimately may have to be some negotiating.</p><p>“I think that the interested parties need to sit down and discuss concerns and have meeting of the minds so we can best address the old racist language,” Mabry said. “It needs to be taken out, everybody agrees to that. I guess the question is how do you get to that point.”</p>